]]>Bass, Berry & Sims attorney Bill Ozier authored an article for the Tennessee Chamber of Commerce & Industry outlining the details of a new bill passed by the Tennessee Legislature in 2015 that creates a new protected status for employees that have a valid handgun carry permit. As explained in the article, “[t]he statute prohibits an employer from discharging or taking any adverse action against an employee solely for transporting or storing a firearm or ammunition in an employer parking area, provided that the employee complies with the provisions of the ‘Guns in Trunks’ legislation passed in 2013.” In the article, Bill further explains how employers will be effected by this new legislation.

]]>http://www.bassberrylabortalk.com/2015/07/30/bill-ozier-authors-article-on-new-protected-status-for-employees-with-valid-handgun-permits/feed/0Single Severe Act Can Be Sexual Harassment – But How “Severe”?http://www.bassberrylabortalk.com/2015/07/28/single-severe-act-can-be-sexual-harassment-but-how-severe/
http://www.bassberrylabortalk.com/2015/07/28/single-severe-act-can-be-sexual-harassment-but-how-severe/#commentsTue, 28 Jul 2015 18:56:59 +0000http://www.bassberrylabortalk.com/?p=1273Wise employers know that a single severe act can be enough to satisfy the standard of “severe or pervasive” and be sexual harassment. But how severe does the act have to be? A recent 6th Circuit ruling gives some assistance. In Ault v. Oberlin College, the Court discussed why a single physical incident was sufficiently... Continue Reading

]]>Wise employers know that a single severe act can be enough to satisfy the standard of “severe or pervasive” and be sexual harassment. But how severe does the act have to be?

A recent 6th Circuit ruling gives some assistance. In Ault v. Oberlin College, the Court discussed why a single physical incident was sufficiently severe. The ruling is likewise informative because it also discusses why several infrequent but boorish comments were not sufficiently severe or pervasive.

Single Physical Incident Sufficiently Severe

The Court reversed the lower court’s grant of summary judgment to the employer and found that a single physical incident alleged by one of the plaintiffs (even though denied by the employer) was sufficiently severe to warrant a trial on the merits. The incident took place in a remote, walk-in cooler while the employee was placing items on a high shelf. The alleged harasser supposedly pinned her against the shelf, placed his pelvic area against her buttocks, trapping her in that position and remaining there against the employee’s protests that he stop, until co-workers happened upon the scene and he walked away. The Court noted that the episode was clearly sexual in nature and included a physical invasion. The incident was physically humiliating and perhaps even physically threatening. Thus, explained the Court, the incident was sufficiently severe – even though it was the only incident alleged by this plaintiff – to warrant a trial. The Court reversed the dismissal in favor of the employer and ordered that a trial be held on this plaintiff’s claim.

Several “Infrequent” Verbal Comments Not Sufficient

As noted, the case is also instructive on what did not rise to the level of sufficiently severe or pervasive. Two other female plaintiffs alleged that the same alleged harasser had made approximately five comments to one plaintiff and three comment to the other that were sexually inappropriate and offensive. The Court noted that the language was vulgar and unprofessional but not enough to establish sexual harassment. The incidents were not physical and were not perceived as any threat of physical contact or harm; the comments were relatively infrequent, occurring during the course of three years.

So how does this inform employers in the day-to-day of operations?

Of course, all conduct – even the vulgar and unprofessional statements – should not be tolerated, even if not legally actionable. The actions are unprofessional, should be taken seriously, and warrant some action on the employer’s part.

For example, the employer should ask – “even if I doubt the story, what if it were true?” As we all know from apocryphal stories we have heard, things are not always as they first appear. Don’t pre-judge.

Further, the Court noted that after the initial complaint, the employer failed to take some reasonable steps to look into the complaints and even had one manager say to the complaining employees, “Now we don’t want a witch hunt here, do we?”

Here, the three plaintiffs had complained of the vulgar statements months before a full investigation was done. And, of course, the initial complaints of improper conduct came before the unlawful physical conduct by that same supervisor. Had the employer acted more promptly on the vulgar comments, then perhaps the more serious incident would not have occurred.

The employer indicated, even after the more complete investigation, that the claims could not be substantiated – even the severe physical incident. However, it is not clear that the employer interviewed any co-workers who were alleged witnesses to what happened and who came to the scene as the incident was occurring.

]]>Yesterday my colleague Todd Overman and I presented an hour-long webinar discussing how to prepare for and navigate the “Fair Pay and Safe Workplaces” proposed rule and accompanying guidance.

On May 28, 2015, the Obama Administration published the much anticipated proposed DOL guidance and accompanying Federal Acquisition Regulation (FAR) proposed rule implementing EO 13673, Fair Pay and Safe Workplaces (July 31, 2014). In the webinar we highlighted key elements of both publications and their impact on government contractors, including:

The new “labor law violation” disclosure requirements and resulting contracting officer responsibility determinations

]]>http://www.bassberrylabortalk.com/2015/07/10/webinar-recap-how-to-prepare-for-the-fair-pay-and-safe-workplaces-proposed-rule-and-accompanying-guidance/feed/0Implications of Proposed Changes to DOL Overtime Ruleshttp://www.bassberrylabortalk.com/2015/07/10/implications-of-proposed-changes-to-dol-overtime-rules/
http://www.bassberrylabortalk.com/2015/07/10/implications-of-proposed-changes-to-dol-overtime-rules/#commentsFri, 10 Jul 2015 14:30:57 +0000http://www.bassberrylabortalk.com/?p=1267Bass, Berry & Sims attorney Stephanie Roth authored an article outlining the details of the U.S. Department of Labor’s (DOL) proposed rules to increase the salary level threshold for those employees eligible for overtime pay. In addition, according to Stephanie, “the DOL has left open the possibility of changing the job duties test, which could... Continue Reading

]]>Bass, Berry & Sims attorney Stephanie Roth authored an article outlining the details of the U.S. Department of Labor’s (DOL) proposed rules to increase the salary level threshold for those employees eligible for overtime pay. In addition, according to Stephanie, “the DOL has left open the possibility of changing the job duties test, which could have more far-reaching implications for workforce structure than the proposed salary level increase.” The proposed rules are open to a 60-day comment period in which individuals can voice concerns over the increased salary guidelines and the effectiveness of the current job duties test.

]]>http://www.bassberrylabortalk.com/2015/07/10/implications-of-proposed-changes-to-dol-overtime-rules/feed/0Antitrust Claims Related to Employee Poachinghttp://www.bassberrylabortalk.com/2015/07/02/antitrust-claims-related-to-employee-poaching/
http://www.bassberrylabortalk.com/2015/07/02/antitrust-claims-related-to-employee-poaching/#commentsThu, 02 Jul 2015 19:03:09 +0000http://www.bassberrylabortalk.com/?p=1261Can employers enter into pacts not to “poach” each other’s employees? That is the question at the center of a recent case claiming that two universities conspired to depress compensation for faculty members in violation of federal antitrust law. A radiologist at Duke University School of Medicine filed the suit after applying and being rejected... Continue Reading

]]>Can employers enter into pacts not to “poach” each other’s employees? That is the question at the center of a recent case claiming that two universities conspired to depress compensation for faculty members in violation of federal antitrust law. A radiologist at Duke University School of Medicine filed the suit after applying and being rejected as an applicant at the University of North Carolina. The applicant was told the universities had agreed to block lateral moves of faculty between the universities. What are the legal concerns regarding employee poaching behavior?

]]>http://www.bassberrylabortalk.com/2015/07/02/antitrust-claims-related-to-employee-poaching/feed/0Union Financing Case to be Heard by Supreme Courthttp://www.bassberrylabortalk.com/2015/07/01/union-financing-case-to-be-heard-by-supreme-court/
http://www.bassberrylabortalk.com/2015/07/01/union-financing-case-to-be-heard-by-supreme-court/#commentsWed, 01 Jul 2015 15:23:12 +0000http://www.bassberrylabortalk.com/?p=1254Bass, Berry & Sims attorney Michael Moschel was quoted in a Modern Healthcare article that outlined the details of a Supreme Court case (Friedrichs vs. California Teachers Association) in which the court will decide whether unions can continue to collect fees from non-members as long as those fees are not used for political purposes. In... Continue Reading

]]>Bass, Berry & Sims attorney Michael Moschel was quoted in a Modern Healthcare article that outlined the details of a Supreme Court case (Friedrichs vs. California Teachers Association) in which the court will decide whether unions can continue to collect fees from non-members as long as those fees are not used for political purposes. In the current case, the teachers association is asking the court to essentially overturn a longstanding precedent established in Abood v. Detroit Board of Education in which the court ruled that unions have the right to collect fees from non-member because the non-members ultimately benefit from any union negotiations. According to Michael, “[i]f Abood is reversed, the court would essentially create a ‘right-to-work’ law for public sector employees.”

]]>http://www.bassberrylabortalk.com/2015/07/01/union-financing-case-to-be-heard-by-supreme-court/feed/0California Uber Driver Found to be an Employeehttp://www.bassberrylabortalk.com/2015/06/22/california-uber-drive-found-to-be-an-employee/
http://www.bassberrylabortalk.com/2015/06/22/california-uber-drive-found-to-be-an-employee/#commentsMon, 22 Jun 2015 19:56:12 +0000http://www.bassberrylabortalk.com/?p=1248In a major setback for Uber’s business model, on June 3, 2015, the Labor Commissioner of the State of California ruled that an Uber driver should be classified as an employee and not an independent contractor. While the ruling applies to only one driver in San Francisco and does not set a precedent for how... Continue Reading

While the ruling applies to only one driver in San Francisco and does not set a precedent for how Uber compensates its 200,000 drivers, it is one of a growing number of decisions that may have far-reaching implications for service oriented businesses in the “sharing” economy. Uber says that its drivers are independent contractors and not employees, which means Uber does not consider itself responsible for paying drivers’ job-related expenses such as mileage and insurance. Moreover, as contractors, drivers are responsible for paying 100% of the federal payroll tax (FICA/FUTA).

Uber Technologies Inc. was ordered to pay a San Francisco driver more than $4,100 to cover the cost of vehicle mileage and tolls. The Labor Commissioner found that Uber is “involved in every aspect of the operation” from vetting drivers and their vehicles to setting rates for trip fares, and therefore is legally an employer of its drivers. Uber plans on appealing the ruling.

To determine whether a worker is an employee, courts and regulators apply various factors to determine whether the company has the right to direct and control a worker. While no one factor is controlling, the following is considered:

the extent to which the worker’s services are an integral part of the employer’s business (examples: Does the worker play an integral role in the business by performing the primary type of work that the employer performs for his customers or clients? Does the worker perform a discrete job that is one part of the business’ overall process of production? Does the worker supervise any of the company’s employees?);

the permanency of the relationship (example: How long has the worker worked for the same company?);

the amount of the worker’s investment in facilities and equipment (examples: Is the worker reimbursed for any purchases or materials, supplies, etc.? Does the worker use his or her own tools or equipment?);

the nature and degree of control by the principal (examples: Who decides on what hours to be worked? Who is responsible for quality control? Does the worker work for any other company(s)? Who sets the pay rate?);

the worker’s opportunities for profit and loss (examples: Did the worker make any investments such as insurance or bonding? Can the worker earn a profit by performing the job more efficiently or exercising managerial skill or suffer a loss of capital investment?); and

the level of skill required in performing the job and the amount of initiative, judgment or foresight in open market competition with others required for the success of the claimed independent enterprise (examples: Does the worker perform routine tasks requiring little training? Does the worker advertise independently via yellow pages, business cards, etc.? Does the worker have a separate business site?).

While the determination of whether a worker is an employee is a fact-based inquiry, the California decision is one of a many cases challenging the independent contractor business model. The alleged “misclassification” of independent contractors has been a focus of the federal Department of Labor during the Obama administration, and the Department of Labor is expected to issue new guidance in this area later this year.

Government Contracting Resources, Inc. (GCR), sought additional compensation for severance costs it incurred, along with its subcontractor, upon expiration of its service contract with NASA for the distribution of mail at the Kennedy Space Center. A collective bargaining agreement (CBA) between GCR subcontractor Creative Management Technology Inc. (CMT) and the International Association of Machinists and Aerospace Workers (IAMAW) granted severance pay to CMT bargaining unit employees who were not rehired by a successor company at the end of the service contract. The provisions of the CBA had been incorporated, through a modification, into GCR’s service contract with NASA.

GCR learned that upon expiration of the service contract, NASA intended to award the follow-on contract to a program that employed blind and disabled workers, leaving 13 union employees entitled to severance pay under the terms of the CBA. After severance payments were made to these employees, GCR sought an equitable adjustment for these costs, and that request was denied.

On appeal to the ASBCA, GCR sought compensation under FAR 52.222-43, the Fair Labor Standards Act and Service Contract Act Price Adjustment Clause. NASA agreed that GCR was bound by the CBA but argued that because the service contract was fixed-price, the severance payments had been accounted for in GCR’s initial price proposal.

The ASBCA granted GCR’s appeal and rejected NASA’s position. The ASBCA held that NASA’s reliance on the fixed-price nature of the service contract was incorrect, noting that the “focus is on whether the contractor has experienced an increase in its costs providing the benefits required by the applicable wage determination.” The ASBCA also found that GCR could not have predicted severance costs in its initial price proposal because at the time the CBA was incorporated into the contract, GCR could not know whether severance costs would be owed since it could not have known whether the service contract would be reprocured, awarded to another contractor or performed by other employees.

Ultimately, the ASBCA found that the severance costs were compensable costs, not included in the initial fixed-price due to their uncertainty, and therefore GCR was entitled to additional compensation under the price adjustment clause. This decision is an important victory for service contractor’s seeking reimbursement for severance costs which could not be known or accurately reflected in initial price proposals under fixed-price contracts. However, please remember that the decision does not relieve bidders of their obligation to assess potential future severance obligations when pricing a contract.

]]>http://www.bassberrylabortalk.com/2015/05/19/sponsored-claim-for-subcontractor-severance-pay-granted-under-fixed-price-service-contract/feed/0EEOC Joins Other Agencies with Proposed Regulations on Wellness Programs Incentiveshttp://www.bassberrylabortalk.com/2015/04/27/eeoc-joins-other-agencies-with-proposed-regulations-on-wellness-programs/
http://www.bassberrylabortalk.com/2015/04/27/eeoc-joins-other-agencies-with-proposed-regulations-on-wellness-programs/#commentsMon, 27 Apr 2015 21:12:28 +0000http://www.bassberrylabortalk.com/?p=1230On April 16, 2015, the Equal Employment Opportunity Commission (“EEOC”) issued proposed regulations on the application of the Americans with Disabilities Act (“ADA”) to wellness program incentives. The release was followed closely by FAQs and a fact sheet. Other agencies similarly provided guidance, including joint FAQs from the Departments of Labor, Health and Human Services... Continue Reading

]]>On April 16, 2015, the Equal Employment Opportunity Commission (“EEOC”) issued proposed regulations on the application of the Americans with Disabilities Act (“ADA”) to wellness program incentives. The release was followed closely by FAQs and a fact sheet. Other agencies similarly provided guidance, including joint FAQs from the Departments of Labor, Health and Human Services (“HHS”), and Treasury, and individual FAQs from HHS.

The ADA generally prohibits an employer from making a disability-related inquiry or requiring a medical examination of an employee unless it is (a) “job-related and consistent with business necessity” or (b) a “voluntary” component of an “employee health program.” The proposed regulations clarify the meaning of “voluntary” and “employee health program.” Under the proposed regulations, a wellness program is a type of employee health program and, thus, must: (1) have a reasonable chance of improving employees’ health or prevent disease; (2) not be overly burdensome; (3) not be a subterfuge for violating discrimination laws; and (4) use methods that are not “highly suspect.” Such a program is “voluntary” if the employer: (1) does not require participation, take adverse employment action against or deny health coverage to an employee who does not participate; and (2) for wellness programs that are part of group health plans, provides notice to employees, in an understandable format, that describes the medical information that will be used, the purposes for which it will be used, and the protective measures it will take on such information. More specifically, incentives may be used in wellness programs that are part of group health plans if limited to 30% of the total cost of employee-only coverage for both participatory programs and health-contingent programs. See our previous guidance explaining the difference between the two.

The EEOC’s proposed regulations also add to the regulations’ confidentiality provisions the stipulation that medical information collected through the employee health program be used by the employer only in aggregate terms that would not disclose the identity of specific individuals. Furthermore, where individually identifiable information is collected through a wellness program that is part of a group health plan, such information is protected heath information under the Health Insurance Portability and Accountability Act (HIPAA).

The proposed regulations seek to reconcile the ADA’s goal of protecting employees from employers seeking and using disability-related information to discriminate and the use of incentives to encourage participation in wellness programs. However, the proposed guidance presents some deviations from HIPAA regulations under HIPAA. Specifically, the proposed regulations apply the 30% limit to both participatory and health-contingent programs, whereas the HIPAA regulations apply it only to health-contingent programs and allow a 50% limit for tobacco-related incentives. With regard to tobacco-related programs, however, the EEOC has indicated that an employer merely asking about tobacco use is not an employee health program for purposes of the ADA and is thus not subject to the lower limit. Also different under the proposed regulations is basing the 30% limit on employee-only coverage. Under HIPAA, the limit is based on the type of coverage selected, whether employee-only or employee-plus if dependents can participate in the wellness program. The EEOC will accept comments on these and other provisions in the proposed regulations until June 19, 2015.

]]>Bass, Berry & Sims attorney Stephanie Roth wrote an article on the pressure employers are facing to forgo inquiring about applicants’ criminal convictions during the initial stages of the hiring process. Stephanie notes that the legal landscape is rapidly changing and the requirement of applicants to disclose their criminal conviction records when first submitting an application for employment is being banned (“banning the box”). Further, Stephanie asserts that healthcare providers should not assume that the nature of work provides an exemption to compliance with these laws. She encourages all employers to revise applications to remove “the box” unless its inclusion is required by law.